3331. Affirmative Defense To Locality Discrimination Below Cost Loss Leader Discontinued Damaged

3331. Affirmative Defense to Locality Discrimination, Below Cost Sales, and Loss Leader Sales Claims--Closed-out, Discontinued, Damaged, or Perishable Items Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 [Name of defendant] claims that any [locality discrimination/below cost sales/loss leader sales] proven by [name of plaintiff] [is/are] within the law because the [product] was being sold as [a close-out/seasonal goods/damaged goods/perishable goods]. To succeed, [name of defendant] must prove both of the following: 1. That [his/her/its] sales were [insert one or more of the following:] [in the course of closing out, in good faith, all or any part of [his/her/its] supply of [product], in order to stop trade in [product];] [or] [of seasonal goods to prevent loss by depreciation;] [or] [of perishable goods to prevent loss by spoilage or depreciation;] [or] [of goods that were damaged or deteriorated in quality;] and 2. That [name of defendant] gave sufficient notice of the sale to the public. Notice is sufficient only if: 1. 2. 3. The sale goods are kept separate from other goods; The sale goods are clearly marked with the reason[s] for the sales; and Any advertisement of such goods sets forth the reason[s] for the sale and indicates the number of items to be sold. ________________________________________________________________________________ New September 2003